Category Archives: Reflection

What I think and believe?

[Reflection] The struggle of memory against forgetting

Posted on by dars0357

Promotional Poster of Beinte Singko. Image from http://www.tfdp.net.

By Darwin Mendiola

Speech delivered during the Opening Ceremony of Beinte Singko at UP Diliman

Remembering the Past is looking at the future

My organization, the Asian Federation Against Involuntary Disappearances is taking part in this memory project for the week-long celebration of the International Human Rights Day for one good reason. We believe a society that has experienced a traumatic politcal situation must preserve and come to terms with its past in order to rekindle and rebuild a hope for the future. To borrow the words of Milan Kundera that “the struggle of man against power is the struggle of memory against forgetting”. This, what I believe, is the main objective of Beinte Singko: The Festival of Memories, Creation of New Stories. This is especially true to victims of enforced disappearance.

“Hindi na po bago sa atin ang usaping ito. Marami na pong taga-UP ang naging biktima ng sapilitang pagkawala. Sino po ang makakalimot kina Atty. Hermon Lagman, Jessica Sales,  Rizalina Ilagan, Geraldo Faustino at marami pa na sapilitang iwinala sa ilalim ng Martial Law o nina Jonas Burgos, Sherlyn Cadapan at Karen Empeno na iwinala sa ilalim ng administrasyon ni Gng. Arroyo. Isa po itong karumaldumal na paglabag sa karapatang pantao.”

Enforced disappearance is one of the cruelest forms if not the cruelest violation of human rights that humanity has ever experienced. It is a multiple and continuous violation of the basic human rights not only of the direct victims but also of their families as well as the larger society.

It inflicts enduring and untold sufferings to the victims as they are removed from the protection of the law and denied access to legal safeguards. They are often tortured and in constant fear for their lives and haplessly put at the mercy of their captors. Sometimes, they are murdered without leaving any shred of evidence.

It also brings ill-effects to the victims’ families for not knowing the fate and whereabouts of their loved ones. They are placed in limbo between hope and despair, praying and waiting, pleading and demanding for answer that may never come. They are not only deprived of the right to mourn but also to find closure.

Enforced disappearance has a particular devastating impact on women and children. For women who are usually left behind to tend the families, they often bear the brunt of the serious economic hardships. They are dispossessed of legal status to obtain pensions or other means of support because of the absence of death certificate. When women are victims of disappearance themselves, they are particularly vulnerable to sexual and other forms of violence. The children of the disappeared are also victims. The disappearance of a child or the loss of a parent as a consequence of enforced disappearance, are serious violations of child’s rights.

It also causes fear and terror among the people belonging to the same community.

Enforced disappearance was first introduced by the Nazis during the Second World War under the “Nacht und Nebel” (Night and Fog) Decree where hundreds of thousands of people were made to disappear throughout Nazi Germany’s occupied territories. It spread around the world and has become one of the wicked features of military dictatorships and authoritarian regimes particularly in the Latin America.

Enforced disappearance continues to happen globally.

“Patuloy po itong nangyayari sanmang sulok ng mundo.”

Many governments still employed this atrocious practice as a tool of state repression and political witch hunt. It is a major human rights concern of 83 countries around world based on the 2010 report of the UN Working Group on Enforced or Involuntary Disappearances, the first thematic UN body created in 1982 to monitor the incidences of enforced disappearances worldwide. Many of these cases occur in 27 countries of Asia, a continent that has the highest number of cases submitted to the UNWGEID in recent years. Unfortunately, Asia lacks a strong regional mechanism for redress and no domestic laws penalizing disappearance as a separate and autonomous criminal offense. This condition perpetuates a climate of impunity that allows perpetrators to escape accountability.

The very existence of the Asian Federation Against Involuntary Disappearances (AFAD), a regional federation of organizations of the families of the disappeared and human rights advocates working directly on the issue of enforced disappearance in Asia, refutes the claim of many states that enforced disappearance is already a thing of the past and merely a Latin American experience.

 A Regional Response in the Struggle against Impunity

In Asia, enforced disappearances remain widespread and unabated.  The narrowing democratic spaces in many Asian countries have consequently resulted to the alarming increase of human rights violations in the region including enforced disappearance.

While many governments in Asia have started to democratize and recognize human rights as an important cornerstone of governance, there is still a wide disjoint between the state policies and day-to-day practices. It is the state’s overemphasis on security and stability continues that creates a huge roadblock in the development of human rights. The war on terror policy is one of the most convenient excuses for the brazen disregard human dignity and freedom.

What makes the situation all the more difficult is the absence of regional as well as national human rights mechanisms which are necessary recourses for redress. The struggle of the organizations of families and human rights organizations in their respective countries in the fight for accountability and the end to impunity has given birth to Asia-wide federation as a cogent response to the phenomenon of disappearances in the region.

Our efforts together with the similar formations in other continents have made possible the recognition of the importance and urgency to forge a global response through the adoption of the International Convention for the Protection of All Persons from Enforced Disappearance in 2006 by the United Nations General Assembly and entered into force on 23 December 2010. To date, this international human rights instrument has 90 signatories and 30 States parties. However, only 13 of these States Parties have recognized the competences of the Committee.

Thus AFAD has continuously campaigned for the signatures and ratifications of the Convention and for its eventual universal application.

The domestic road towards the universal protection against Enforced Disappearance

In the Philippines, one glaring problem for its continuing commission is the complete lack of accountability. Not only that cases of enforced or involuntary disappearance are by their very nature difficult to investigate and prosecute, it persisted and has been carried out with total impunity. The perpetrators of this heinous offense have absolute impunity because there is no physical evidence extant to pin the blame on any person. This proves that the existing legal measures that provide safeguard for lives and liberties are inadequate and insufficient to combat impunity.

For almost two decades, the organization of families of the disappeared and other human rights groups have steadfastly lobbied Congress to enact a law defining and penalizing enforced or involuntary disappearance.  It was filed and re-filed in Philippine Congress but lamentably was not acted on by previous Congresses.

The Philippine bill against enforced disappearance is one of the two existing bills in Asia. The other one is in Nepal. If enacted into law by the Philippien government, it will be the first anti-enforced disappearance law in region and can set a good example to other Asian governments.

However, it has just recently that it sees the light of day with approval of the Senate on its third and last reading the Senate Bill 2817 on July 26 and the adoption of the Joint Committees of Human Rights and Justice of the approved House Bill 5886 on August 17 as a substitute bill for plenary deliberations.

This is indeed a welcome development. But it also give us more reasons to continue our work as we continuously urge Asian governments to immediately sign and ratify the International Convention for the Protection of All Persons Against Enforced Disappearance without reservation and to enact a domestic legislation without further delay.

There are at least 10 reasons why government should do so:

  1. Both measures define the act enforced or involuntary disappearance. It limits commission of forced disappearance to deprivation of liberty for political reasons by agents of the State or by private persons or group of persons acting with the authorization, support or acquiescence of the State. It is the recognition that the state is duty bound and has the primary obligation to promote, protect and fulfill the rights of its people;
  1. Both consider enforced disappearance as a continuing offense as long as the perpetrators continue to conceal the fate or whereabouts of the disappeared person and such circumstances have not been determined with certainty. This means that an act of enforced disappearance committed in the past continue to occur until the fate and whereabouts of the victim is verified and that that the prosecution of persons responsible for the enforced disappearance shall not prescribe unless the victim surfaces alive, in which case the prescriptive period (in this case 25 years) shall start to run from the date of his or her reappearance;
  1. Both are consistent with the principle of command responsibility. It holds the immediate hold any person involved in an enforced disappearance criminally responsible, as well as their superiors who knew or should have known what they were doing, and should have prevented, investigated and punished the subordinates for wrongdoing. The disputable presumption of knowledge by the superior of the acts of the subordinate and to eliminate the presumption of regularity in the performance of official duties in prosecution of cases involving enforced disappearance;
  1. Both guarantee the non-derogability of rights against enforced disappearance. This means that the right of any person not to be subjected to enforced disappearance and no exceptional circumstances, not even a state of war, may be invoked as justification;
  1. Both clearly differentiate between enforced disappearance committed as part of a massive or systematic practice and that of isolated and sporadic cases committed outside of the context of armed conflict. Thus it characterizes enforced disappearance as a crime against humanity only when the actions involved are committed within the framework of a massive or systematic practice and otherwise considered as an international crime;
  1. Both provide a number of protection and preventive measures such as to require official Up-to-date register of all persons detained or confined; to visit to or inspection of all places of detention by the National Human Rights Institution; to institute stringent safeguards for the protection of people deprived of their liberty; declare unlawful an order from a superior officer or a public authority causing the commission of enforced disappearance and therefore such order cannot be invoked as a justifying circumstance; prevent the accused from influencing the investigation and prosecution of the cases, the bill provides for his/her preventive suspension upon the filing of the information or complaint in the proper court; and the guarantee of non-refouler;
  1. Both recognize the rights of victims as well as the duties of the state to investigate, to prevent and to hold the perpetrators accountable. Both provide specific rights to the victims such as the right of a person under detention; free access to information by families, lawyers or human rights organizations at most expedient means without restrictions or court order; and rights to receive indemnification, medical care and rehabilitation. It also bestows duties to the state such as to certify in writing on the results of Inquiry into the reported disappeared person’s whereabouts; duty of inquest/ investigating public officer or any judicial or quasi judicial employee; provide appropriate medical care and rehabilitation; and to render monetary compensation to the victims and ensure restitution of their honor and reputation. The Philippine government is likewise duty bound to comply with the obligations arising from treaty bodies in which Philippines is a state-party;
  1. Both requires the state to train  law enforcement personnel on the content of the law and the absolute prohibition to commit enforced disappearance;
  1. Both exclude any investigation, trial, decision for any other legal or administrative process before the appropriate international court or agencies under applicable international human rights and humanitarian law from double jeopardy rule; and
  1. Both have an Oversight Committee to ensure compliance with the provision of the law and/ or the treaty.

Establishing these legal measures and mechanisms both at the international and national level is just one big step towards ending impunity for human rights violations. This step may not bring back to life those who are made to disappear but these will certainly help prevent others from suffering the same fate, sparing their families from the perpetual agonies of the uncertainty and freeing the society from fear. Thus, the struggle against forgetting and the struggle against impunity must go on…

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[Reflection] The right to strike

Posted on by dars0357

The PALEA members conduct a “sit-down protest” affecting almost all of the flights of the Philippine Airlines (PAL) and 14,000 passengers. Photo from dzrhnewspublic.blogspot.com

Last Sept. 27, the load controllers at the Ninoy Aquino International Airport (NAIA) Terminal 2 walked out of their posts and airport personnel at the check-in counters vacated their work stations.

The Philippine Airlines Employees Association (PALEA) in their official statement announced that they were holding a peaceful sit-down protest to decry the PAL management’s plan to outsource and imminently displacement more than 2,500 regular PAL workers.

This compelled the Philippine Airlines (PAL) management to suspend all airport operations and cancel 172 inbound and outbound flights. Report said that at least 14,000 passengers were stranded in the airport while typhoon Pedring hit Manila heavily.

While the PALEA strike has drawn mixed reactions from the public, but what is really worrisome is the reaction of President Benigno Aquino III by calling it an economic sabotage. Although, PNoy seemed to backtrack when the Department of Labor and Employment upheld the action as legal, but his initial reaction has in effect pronounced the government’s anti-labor position.

It conveyed a ricocheting statement that strikes and other concerted labor activities aimed at airing legitimate workers’ demands and grievances are now regarded as economic terrorism and therefore should be met with violent force and repression.

While the PALEA strike might have caused an economic disturbance particularly in the general operation of the air transport industry but it does not reduce the fact that they have legitimate reason to do so.

Although labor outsourcing is nothing new, it is in fact allowed by labor law.  It is usually justified in the face of impending crisis. Most business establishments may find it logical and necessary to adopt this flexibility measure to cope with the fluctuations in the demand for their products and to reduce their production cost by maintaining lean regular work force.

But the question that should therefore be addressed is how to strike a balance between maintaining the companies’ profit and protection of employees. Business survival will be meaningless if the end result will be more unemployment.

This is what Pnoy should first think about before talking.

His responsibility is above all for the interest of the people including the poor workers and not for one company alone much less for the interest of a very rich businessman like Lucio Tan.

With more than10 million Filipino workers unemployed and underemployed and the threat of the continuing displacement and the gradual return of OFWs due to the economic recession in theUnited Statesand other parts of the world and political instability in the Middle East, can this country afford to leave more workers out of jobs?

The right to strike is a basic labor right that should be exercise whenever the security and dignity of workers are threatened.

But most importantly, it is also our right to hold any government responsible not only for allowing such right to be violated but more so for serving the interest of the few. If this is what PNoy meant of “matuwid na daan” then let’s all make this road rough and wry for his administration by not only supporting the PALEA strike but by raising this action to a political cause.

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[Reflection] The Lesson of History

Posted on by dars0357

Defying the dictator. Photo from bulatlat.com

There is a saying that says “those who forget the past are doomed to repeat it.” But I believe that those who learn from the lesson of history can create their own.

Yesterday was the commemoration of the 39th anniversary of Martial Law. For the younger generation, it maybe just one of the blurred pages in our history books, but for those who have witnessed these dark moments, it is certainly unforgettable.

Others might think that Martial law was not bad as it seemed but it is no doubt remains the symbol of oppression and repression in the country. It was the deathbed of our country’s freedom and democracy.

But after almost three decades, nothing seems to change.

Human rights violations are still rampant. Political beliefs and activities may appear to be tolerated but these are still the main reasons why activists are still put under surveillance, arrested, detained, forcibly disappeared or even killed. Although, there are now judicial remedies and human rights legislation that are supposed to provide better human rights protection but prosecution and conviction of human rights cases are still almost nil. Many if not all of the perpetrators of the past and recent violations remain scot-free while the victims and their families continue to suffer the consequences of their traumatic experiences.

We may now have the freedom of the press but many journalists have to spill their own blood for exposing the truth.

Many are still poor because the inequitable distribution of wealth is just getting wider. Development is meant to put people deeper in the mire of poverty. Our natural resources are no longer the country’s wealth but commodities for international capital and market.

Congress is now back in business but most of the time, it is still subservient to the interest of those who hold the nation’s coffer.  In fact, the Marcoses who are still enjoying the fruits of their ill-gotten wealth are back in the corridor of power.

We may have another Aquino in Malacanang but he is keen of preserving his name than preserving democracy.

Martial Law may be synonymous to a nightmare. But it made the Filipinos dream for a just, humane and free society. It made them value themselves, their dignity, their freedom and their rights. It ignited within themselves the fire of revolution that paved the road to EDSA and the downfall of the Marcos dictatorship.

Martial law may still be a painful memory. But it serves as a reminder for all of us that the real power lies in us.

The only way to ensure that Martial Law will not happen again nor by any chance it will rear its ugly face once more is for us to know our rights, to stand and defend these rights through individual and collective actions.

History is said to be unfolding.

But we should not let it move by itself.

We have to create it.

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[Reflection] 9/11 and Human Rights in the Philippines

Posted on by dars0357

9-11 attacks at the World Trade Center. Photo from dailymail.co.uk

The 9/11 terrorist attacks which stunned the world ten years ago had opened a floodgate of human rights issues and concerns globally with the subsequent declaration of a “global war on terror,” and the development of more stringent counter-terrorism efforts in many countries.

Indeed following 9/11, a number of countries which have joined in a global coalition against terrorism, have found a convenient excuse to continuously violate the human rights of their own people and justify their repressive practices in the guise of national security.

What was unleashed as an aftermath of 9/11 is “state-sponsored terror” throughout the world by having more restrictive internal policies and unbridled military power by governments. Everywhere, clandestine combat operations, setting up of secret detention facilities like the Guantanamo Bay and the “black listings’ of individual and groups including those legitimate civil society organizations have become an order of the day.

While everyone recognizes that acts of terrorism are violations of the basic right to live in peace and security but countering terrorism should not be done at the expense of the rule of law and human rights protection. Even those who are suspected ‘terrorists” also have the rights as members of the society which includes among others, the right not to be subject to torture or other degrading treatment, the right to be presumed innocent until they are deemed guilty of the crime and the right to public trial.

The Philippine government’s involvement in “the global fight against terrorism” has led to the enactment of Republic Act 9372, otherwise known as “Human Security Act,” which entered into force on 15 July 2007. It was also during this period that the Philippine government intensified its counterinsurgency campaign called “Oplan Bantay Laya” (Operation Freedom Watch) which led the military to deliberately target and systematically hunt down leaders of leftist organizations, resulting in hundreds of cases of extrajudicial killings and enforced disappearances in the country in the past years. This situation was noted with great concern by the UN Special Rapporteur on extrajudicial executions Philip Alston, following his 10-day visit to the country in February 2007.

The Human Security Act on 2007 is viewed by human rights groups as a direct affront to civil liberties and fundamental freedom. The apprehension on the possible excesses in the implementation of the anti-terror law is also shared by Ambassador Alistair MacDonald, head of delegation of the European Commission to the Philippines who said that “the anti-terrorism law is not an excuse to go out and shoot people… to target people for matters not provided in the law.

It permits police or law enforcement officers to detain for a maximum number of three days, a person who was previously arrested without a warrant. By changing the duration of custody, the law has prejudiced the accused as it allows the police or the military unwarranted access to the suspects thereby increasing their exposure to torture and intimidation during the course of the investigation. Moreover, during the mentioned period of time, the person deprived of his or her liberty is placed outside the protection of the law.

It is well-known fact that the period between arrest and presentation of the arrested person before a judicial authority is a period conducive to torture and ill-treatment on the person arrested. It is most common that the persons arrested are subjected to torture and ill-treatment before they were brought to a judicial authority. Individuals ending up as tortured, disappeared or murdered victims were the ones initially arrested without warrant or merely “invited” for questioning and taken to detention centers, safe houses, and military camps. We can take the Basilan torture case as a proof. Abdul Khan Ajid was tortured and burned alive while being forced to confess membership in the Abu Sayyaf.

Unfortunately, the Aquino administration has just continued the security plan of his predecessor. He has not only uncritically allowed the permanent stationing of US troops in the country but his directive to the military to have a paradigm shift from the combat-focused approach it used in the past to a human security or “people-centered” approach through its Internal Peace and Security Plan Bayanihan is nothing more than just another name for Oplan Bantay Laya.

In fact, Pres. Aquino (PNoy) has just recently certified as urgent, a legislation that will give the “anti-terror law” more teeth by removing whatever remaining human rights safeguards that the law has provided. This clearly shows where human rights are placed under the Aquino administration. As a son of a human rights victim himself, we are expecting him to do better and to take human rights issues as personal the same way that he takes the fight against corruption in government.

PNoy should understand that security and human rights are not in themselves, contradictory. They actually go hand in hand. The respect for human rights is the only road to security, not an obstacle to it. The guarantee of national security of a State can only be achieved through respect for human rights and not their violation.

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[Reflection] Reaping the fruits of labor

Posted on by dars0357

Chair Loretta Ann Rosales of the Commission on Human Rights of the Philippines speaks on the compensation of Martial Law human rights victims. Photo by allvoices.com

The Commission on Human Rights of the Philippines: Its Legitimacy and Performance

Efforts have been made in recent years at the international level to establish clear criteria or at least minimum standards to measure the effectiveness of the existing national human rights institutions (NHRIs). The normative standards and legal foundations for such institutions were developed in 1991. This set of guidelines is called the Paris Principles.

But despite having this set of guidelines, there is still a general recognition that the establishment of NHRIs is a new field in human rights work particularly on the side of the governments. In fact, until now many States-members of the United Nations have yet to set up their own NHRIs not only because they lack adequate knowledge on how it works but mainly of fear that their performances will be measured on such aspect. It only shows that there is still a dire need to deepen our understanding on the nature and character of NHRIs in order to make these special bodies really become effective promotional and protection mechanisms for human rights.

This will also refute the notion of some governments that creating them is in itself a good human rights performance. But legal foundation does not automatically assume public legitimacy as one of my colleagues commented in my previous blog article on the same topic that, “its legitimacy and credibility have to be won”.

The standards set by the Paris Principles were quite clear. NHRIs should first be established by law with clear mandate and functions. But that does not end there. They must also have some form of independence not only structurally but politically. Why? Because they need to earn and retain the public trust. The public perception of NHRI is very important benchmark of its effectiveness. In the first place, NHRIs are supposedly formed to monitor the state’s human rights obligations to its own people whose needs they are intended to serve. It is therefore essential to assess whether vulnerable sectors or groups who are prone to abuses are being protected by NHRIs.

This generally speaks about the functions of NHRIs or on whether they have adequate powers to do their mandate, their accessibility to the public, their operational efficiency and their ability to respond to the needs of the victims and their next of kin and to curb human rights violations.

The Commission on Human Rights of the Philippines is said to be one of the most dynamic NHRIs in Asia but still others are of the opinion that its works still fall short of the international standards. Although, It has been performing most of the responsibilities expected from NHRI such as reporting to the government on human rights matters; ensuring harmonization of national laws with international human rights standards; encouraging ratification of international human rights instruments; contributing to states’ reports to UN treaty bodies and committees; co-operating with international, regional and other national human rights institutions; assisting in human rights education; publicizing and promoting human rights. But these are driven more by its institutional obligations rather than working on its transformative role.

There are many aspects of its nature and works that need to be reviewed but let me focus my points of analysis on areas that I believe are problematic.

The Paris Principles require NHRIs to have some level of independence from government to maintain its objectivity and impartiality. One aspect that needs serious consideration in assessing the CHRP is the nomination and selection of its Commissioners. So far, the appointment process is completely at the discretion of the President. It is not participative and transparent. It is no different from other political appointments except that there is no public hearing or interview of nominees. It often comes as a surprise when a new commissioner is appointed. My question is not on the qualifications of the nominees but on the process itself. There is no doubt on my mind that the appointment of the previous and current Chairperson of the CHRP is probably the best decision made by the executive. But this doesn’t stop the public in wondering that the appointment is based mainly on political connections. Some will still argue that the appointment is just mere formality and has no effect on the performance of the CHRP as shown by the previous and current leadership. Others will also say that its organizational and fiscal autonomy have really helped to make it work independently with less if not a complete lack of intervention from the government.

However, the CHRP must also realize that they are a collegial body and that they are more than the sum of all the Commissioners. They must act collectively in order to become a high functioning and effective organization. One concrete step to do this is to strengthen their regional offices’ capacities to respond effectively and promptly. It also needs to take a look on its concept of the Barangay Human Rights Action Offices. While the idea is quite unique and promising, but they are still poorly trained, supported and directed.

The CHRP’s public accountability remains a demand rather than an established mechanism. Although, efforts are being made at the regional level particularly the Asian NGOs Network on National Human Rights Institutions (ANNI). The public has little awareness and knowledge if not totally at bay on the CHRP’s work beyond the publication of its annual reports. Despite of the existing and ongoing civil society engagement with the CHRP, there is still a big gap in public participation specifically in the grassroots level.

Everyone will perhaps agree that the links between civil society organizations and NHRI particularly one which is established in a situation where serious human rights violations persist, cooperation can create a political space within which civil society can operate and help NHRI do its work. However, such collaboration should be a two-way process. Human rights NGOs are usually the main source of knowledge, expertise and public legitimacy that can be of benefit to a national institution. But it would become wary if not downright hostile if the NHRI will act as an apologist of the government.

The Paris Principles provide the obligation to NHRI to promote human rights through public education. The CHRP human rights program has the legal and institutional support through various Executive Orders and statutory laws. But there seems to be no evaluation procedure to measure its impact and effectiveness. CHRP must understand that public awareness-raising is just one aspect of human rights education. It should be internalized and observed by those who undergo the program especially the security sectors. The real valuable of their work on education, training, reviews of laws, study of international instruments must be felt by the public at large.

I know that it is not an easy task to evaluate the CHRP’s effectiveness and it may not be fair to measure its performance in relation to all the other institutions and mechanisms that are essential to the promotion and protection of human rights.

I am not saying that I am an expert on this subject. I even admit that my engagement with the CHRP is limited and my exposure to their works is minimal. My opinion here is merely based only on my personal perceptions and observations and my analysis is drawn from various studies and reports.

But as a human rights advocate and a concerned citizen, my only purpose in writing this is not to discredit anybody nor put the CHRP in a bad light but to open a venue for a national discourse aims at making human rights a reality on the ground which the CHRP should be leading the way. After all, it is what we sow that we reap.

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[Reflection] Expanding the Mandate of the Commission on Human Rights: Can a toothless tiger bite with false teeth?

Posted on by dars0357

CHR en banc meeting. Is CHR ready to have a quasi judicial power? Photo from balita.ph

The human rights situation in every country is gauged not only on how its governments have performed its primary duties to promote, protect and fulfill the basic human rights of its every citizen by putting in place in its policies and programs, measures and mechanisms that guarantee redress and accountability, but also on the performance of a well functioning national human rights institutions (NHRIs) which are in charge with the compliance monitoring of the human rights performance of the states.

The role of NHRIs in fostering a culture of human rights promotion and protection has been widely recognized in recent years. It goes without saying that these days every country has to have a national human rights commission if it is really committed to human rights.

However, many governments have established their own human rights commissions just for the purpose of improving their international reputation and shielding themselves from international criticisms and scrutiny for committing gross violations of human rights. In fact, the NHRIs that have shown high level of effectiveness and independence are mostly those where its governments have the strong commitment to human rights compared to those NHRIs in countries where human rights are most seriously violated.

Philippines is said to be exceptional for having a very dynamic NHRI. The Commission on Human Rights of the Philippines (CHRP), an independent constitutional body enshrined under the 1987 Philippine Constitution, was created in 1987 with the issuance of its legislative charter, Executive Order No. 163. Its present proactive stance is said to have inspired the Filipino people to look at it as the protector and promoter of human rights in the country.

However, many are still of the opinion that even if the CHRP carries out its function well, if its powers are limited, it will still be incapable of curbing human rights transgressions. This is not mainly on the issue of having a limited power but more specifically on its defined focal functions which hardly met the criteria set forth by the Paris Principles. Although, much of the discussions on NHRI’s performance audit using this international criteria have been largely normative and legal. What I am more concerned with is its practical performance or on how it really carries out its mandate and functions.

The Paris Principles require that NHRI must have a broad mandate as possible which mean the unrestricted power to promote and protect human rights. The Commission has various powers and functions as enumerated in the 1987 Constitution, among which is the power to investigate, on its own or on complaint by any party, all forms of human rights violations involving civil and political rights. Its principal function therefore is primarily investigatory. But this investigative power of the CHRP has been the main subject of criticisms by various sectors due to generally two reasons. First, the mere investigatory power does not give the much needed teeth that can forestall human rights violation nor provide redress for misdeed. Secondly, it is limited to political and civil rights and excludes the vast area of economic, social and cultural rights.

The reason for this according the Constitutional expert Fr. Joaquin Bernas, SJ was that the desire of the 1986 Constitutional Commission is not to overburden the Commission during its initial years and this limitation does not exclude the possibility of expanding the Commission’s scope. This is said to pose no serious problem to the Commission as it has able to transcend over the years this constitutional limitation by issuing resolutions that clearly differentiated the investigation for purposes of prosecution for civil and political violations and investigative monitoring on economic, social and cultural issues. It has even used such issues to remind the government on its obligations emanating pertinent international human rights treaties in which Philippines is a State party.

The local lawyers group, Libertas in its 2010 ANNI Report entitled, Philippines: A Time of Great Irony concluded that “the Commission on Human Rights of the Philippines which once taunted as a ‘toothless tiger’, began to roar.” It was during the iniquitous Arroyo administration where the spate of unlawful killings and enforced disappearances has reached an alarming proportion that the Commission made use of its investigative power to bring human rights violations to the fore. It held public inquiries, fact finding missions and special operations to ferret out the truth behind alleged state abuses.

Hence, the need to grant the Commission the power to prosecute and adjudicate or even to the extent of converting it to a quasi-judicial body is now seriously being considered. For two decades, several bills have been filed in Congress seeking to enhance the Commission’s independence through an amendment to its legislative charter but until now it is yet to be enacted by the Philippine Congress. One suggested reform is to provide the Commission with a “standby prosecutorial powers” in cases of failure by the government prosecution body to act on human rights violations.

However despite this noble intention, others believed that the grant of such power will mean the change the nature of the CHRP as provided for in the Constitution since it may undermine its status as an independent constitutional body and as result it may clash with other prosecutorial agencies such as the Department of Justice and Ombudsman. I believe that the difference in the prosecutorial functions of the CHRP to that of other prosecutorial agencies can be best resolved by clearly defining the scope and limitations of such functions. What bothers me is the tendency of the CHRP to mistakenly identify a mere criminal offense to that of human rights violation especially if it involves non-State actor. If this is the case, perhaps CHRP should push for the enactment of a “Code on Human Rights Violation” which will delineate the distinction between the commission of a criminal act punishable by law from the violation of human rights. This is very important for the CHRP to effectively perform its prosecutorial functions.

The Paris Principles provide that NHRI should investigate and report upon potential human rights violations at the request of government or any interested party or on its own initiative. But even if the present and previous CHR’s leadership have shown activism and independence, the institution remains largely a part of the government’s bureaucracy that work on an eight to five o’clock basis and remains inept to take prompt action on urgent issues especially those situated in different regions. How if the violation is committed during weekends? It is short of saying that CHRP needs to set up a call center which will advice the callers that CHRP personnel will get back to them as soon as they have reported in the office. The Commission’s complaint-handling and investigation processes based on the actual experiences of human rights organizations reveal a lack of coherent policies and in most cases have undermined its effectiveness.

The CHRP as an investigative and soon as a prosecutorial body should provide a coherent procedural policies and create quick reaction teams if it accepts the need to have strong “teeth” because if not, it may find itself biting with false teeth while roaring with regrets.

The CHRP’s performance if based on the Paris Principles for me is yet to get off the mark in terms of its mandate and functions. Although, I know that there are several factors that need to be discussed as vital point of references to really come up with an objective assessment of CHRP’s performance but let me reserve those issues on my next blog article.

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[Reflection] Discussion on my recent blog article

Posted on by dars0357

Book on Non-State Accountability under International Humanitarian Law. Photo from iihl.org

Danny Carranza: Darwin, good read. However, i disagree. Non-state armed groups should be held equally liable for human rights violations, especially by those who profess to respect human rights. Distinctions between violation and abuse may not even matter to victims. And from the point of view of many victims of human rights violations, they know that the their experiences constitute human rights violations.

Danny Carranza: This should have read: This is what a group called CALASAG said in their position paper during the deliberation on the anti-torture bill. The 1998 Rome Statute of the International Criminal Court, which is considered the highest development of international criminal law so far, both torture and enforced disappearance are key specific acts which may be committed as part or elements of a crime against humanity, under its Art. 7, par. 1 (f) and (i). The Rome Statute definitions of the crimes of genocide, crimes against humanity, and war crimes – “the most serious crimes of concern international community as a whole” – are not limited to commission by state agents. In fact, the very first case prosecuted in the ICC is against leaders of a NSAG, the Lord’s Resistance Army (LRA) of Northern Uganda.

Darwin Mendiola: Danny, that’s a good point…

Darwin Mendiola: But my reflection is quite clear… when it involves the attack against the civilian, it falls to the category of human rights transgression. while the atrocities committed by warring parties against each other, it is a breach of the law of war.

Darwin Mendiola: I don’t think we have different concept of what victims of human rights violations are. I agree that regardless of the perpetrator as long as it is in the context of power relation, victim must be accorded with rights to remedy and justice…

Darwin Mendiola: However, we must understand that state and non-state actors are not in the same footing… we expect a greater level of responsibility from the state than the non-state actors. There are outlaws in the first place and not bound by the same legal obligation. But of course, we must demand from the state the accountability of NSA for their wrongdoings…Adherence to human rights is what differentiate NSA from common criminals. So if they don’t adhere with this principle…there is no reason to dignify their criminal act…

Danny Carranza Thanks for the education, Darwin. But in fact, some non-state actors profess to be better than the current state in their observance of human rights standard. This is the reason they want to topple the state. In regard to the CPP NPA, they have entered into an agreement to respect hr-ihl under the CARIRIHL.

Danny Carranza: So how do we describe the violations under CARHRIHL? The NPAs abuse human rights and the Ph government violate human rights?

Danny Carranza: Again, I quote from the CALASAG position paper:

Danny Carranza: The CARHRIHL is in fact an agreement whereby a non-state binds itself with an obligation to respect, protect and fulfill human rights. If they themselves consider it an obligation, why do we hold on to the traditional view that only state actors can be held liable for human rights violations?

Danny Carranza: Violations under CARHRIHL are VIOLATIONS, not simply abuse of human rights. And both the Ph government and the CPP-NPA-NDF should be held liable when such violations occur.

Darwin Mendiola: Danny, sorry if i did not able to reply to you earlier… Anyway, I think we are in the same page in understanding NSA accountability. I believe that the CARHRIHL sets legal obligations on both the state and non state…. There is no question about that… But again,the convergence of HR and IHL is the protection of civilians caught in the war. It does not cover the actual atrocities between parties as a result of war. Besides, its enforcement is limited to the peace talks…Its ironic that monitoring and investigation are on the hands of both parties in a joint body… HR is not a subject of negotiation.

Darwin Mendiola: HR should not be a subject of any political negotiation… It is inherent and universal. the problem with CAHRIHL is that it is meant to be a political tool rather than a legal binding instrument…

Danny Carranza: But that is precisely how concepts and eventually major international treaties on human rights evolved: through political negotiations, although primarily by signatory states. The process of discourse making, including human rights discourse is essentially a political process. I would surmise that there were a lot of political actions and negotiations which took place before we, as Filipinos, were allowed to vote, years after the right of suffrage as a human right was deemed universal.

Darwin Mendiola: Danny, i definitely agree with you… it is indeed a historical fact…that any concepts whether political or legal including human rights evolve through negotiation. but when it becomes a socially accepted principle…it is already a law that requires enforcement… in terms of CAHRIHL, the fact that it is already agreed upon by two parties… it should be enforced… not through negotiation but through established institutional mechanisms… because if it remains to be a subject of negotiation… it defeats its own purpose of providing protection…Besides practically, it is the state which has greater responsibility to enforce such agreement than their counterpart…

Danny Carranza: When your concept of human rights is set in stone, i dont think there is any room for the evolution of that concept. It is precisely because our appreciation of human rights is evolving that we continuously negotiate. If you mean that violation of human rights by non-state actors has yet to become socially acceptable, maybe its because you dont accept it yourself.

Darwin Mendiola: Danny, don’t get me wrong…. I do recognize that NSAs are equally capable of human rights abuses… i believe my blog article was very clear on that. My only argument boils down to the question, when do we consider a violation an affront to human rights. My position as what i have put forward in my blog is that when it is an attack against the civilian whether it is perpetrated by the state or by NSAs. But when the atrocities are between warring parties (or combatants), those only fall to the category of war crime. I believe this analysis is consistent with Rome Statute and all other international human rights instruments. I personally welcome the ratification of the Rome Statute of the Philippine government. It will certainly provide better protection fro human rights against the abuses of the state and the NSAs. But again, i would like to reiterate that the aim of IHL is to strike a balance between military necessity and humanitarian concerns. It converges with human rights standards when the powerless civilians are the ones who bear the brunt of war…

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[Reflection] Demanding Human Rights Obligation Beyond the State

Posted on by dars0357

Chairperson Loretta Ann Rosales of the Commission of Human Rights speaks about the obligation of everyone to respect human rights of all.

The accountability of non-state actors for human rights abuses has been the subject of discussion by experts and human rights advocates alike for the past two decades. It arises from the premise that actors other than the state are in fact equally capable of carrying out the worst forms of human rights violations.

It is beyond cavil that the human rights abuses which have been committed, are still being committed and can possibly be committed by non-state actors especially the armed groups evoke strong passions for culpability.

People are bound to disagree on whether it is legitimate or not to engage in armed violence in order to bring about change, even when the motive is to end injustice. It is perhaps an understatement to say that our views are usually colored by our political bias in relation of armed groups to the application of human rights.

It invites more controversy when the opinion comes from Chairperson Loretta Ann Rosales of the Commission on Human Rights, who has been the subject of media attention in the past couple of weeks for her vocal censure on extreme and unjustifiable violence committed by both state and non-state actors. She even professed when asked by one reporter to define human rights during the media briefing on the formal signing of the Memorandum of Agreement between the Medical Action Group and its partners, the Commission on Human Rights (CHR), the Association of Municipal Health Officers of the Philippines (AMHOP) and the British Embassy on August 8, 2011 that because, “everyone is endowed with human rights and as a result we all have the duty and responsibility to respect and make sure that everyone can exercise their rights.”

In ordinary discourse, this statement may be accepted as an aphorism but applying it in a particular context is where different interpretations come in contention. Given the fact that Chair Etta was already being accused by militant groups of using her position to pursue her personal vendetta against alleged erstwhile comrades in the national democratic movement and by using the Commission on Human Rights as an inquisition arm of the Aquino regime against the left, this statement may be construed as a justification.

With due respect to Chair Rosales, there is no question about her integrity, knowledge and dedication for human rights. Besides, the CHR even before her appointment has already been working to address the abuses of non-State actors as part of its mandate to ensure human rights are respected.

But Chair Rosales and the CHR should be aware of their own institutional limitation as well as the strict application of human rights principles. They should clearly determine when human rights are violated and when is not. Contrary to what have been said, the distinction between human rights violation and abuses is not simply technical nor political but rather legal, logical and practical.

For the human rights community, the accepted wisdom was that human rights principles and law applied only, or mainly, to the mediation of the relationship between citizens and the State. Under this classical interpretation of rights, only States violated human rights and anyone else who acted inappropriately was a criminal. States have a great responsibility in terms of accountability and remedy. It is a matter of social contract between the state and the people and not between private individuals.

Human rights are basically the protection and preservation of human dignity. It is a shield of protection against the “sword-bearing” power-that-be. Thus, Human rights are not within the individual private sphere but on the public and social sphere of power relation.

Even the international humanitarian law is clear with its convergence with human rights. That is when it involves the violations of the rights of civilians and not the atrocities committed by warring combatants against each other. Humanitarian law is obviously based only on the balance between military necessity and humanitarian considerations. The best argument for this is the “Boxing Ring” analogy which states that when a boxer (warring parties/combatants) enters the ring, he or she renounces his or her right not to be hit. Yet, a boxer is expected to follow some rules like no hitting below the belt or no-head butting. However, this is not equal when the boxer punches someone outside the ring.

Following this analogy, it is safe to conclude that the beheading of soldiers in Basilan by suspected Abu Sayyaf is not a human rights violation but a criminal act, plain and simple. Madam Etta should not confuse human rights from brutal atrocities.

Although, there is now a growing recognition on human rights abuses of non-state actors through the doctrine of drittwirkung which provides the idea that the human rights obligation is equally applied in relations between private parties and with that of the horizontal duty of states to ensure human rights (indirect drittwirkung).

But pursuing direct responsibility of non-state actors will only lead to confusion especially about what rules to apply, if there is any. A thin border exists between a group regarded as a criminal threat to be dealt with through law enforcement mechanisms, and a political opponent to be dealt with in the context of political negotiations.

Even strategies to ensure respect for human rights directed at highly sophisticated organizations with clearly delineated channels of leadership are unlikely to be effective in preventing or much less ending human rights abuses. The leadership of an armed group, for example, will often deny any criticism and claim that certain acts do not reflect official policy and are simply errors committed by rogue members. It may point to the difficulties faced by an underground organization, or one fighting on different fronts. They may also quick to dismiss it as mere back propaganda which aims to discredit their legitimate revolutionary agenda. If the military used to claim lack of effective control within its politicized ranks whenever human rights violations came into spotlight, interestingly this same excuse is also used by their non-state counterparts.

More so, that there are many practical and security constraints exist in relation to non-State actors, which make investigations and fact finding much more difficult. It is easier to subpoena a police officer, than to subpoena a rebel soldier. There is a greater chance that a government official will attend a court hearing, than a guerrilla leader. Even just the act of finding a rebel soldier is complicated, and the probability of bringing one in is slim, if not nil.

Clearly, some armed groups have carried out horrifying human rights abuses that deserve to be condemned in the strongest terms. I believe that everyone recognize the need to limit if it is not possible at this time to completely eliminate such abuses.

The moral obligation to stand against any forms of human rights violation may be beyond the state but ensuring accountability remains at the hand of the state. It is inevitably entailed state responsibility through the effective discharge of the state’s duty to protect human rights and to exercise due diligence.

Madam Etta should know that invoking the respect for human rights is more of dealing with the principle not by political conviction.

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[Reflection] Hunger Strike: A Political Challenge

Posted on by dars0357

Hunger strike of Political Prisoners. Photo from hronlineph.wordpress.com

The hunger strike is a form of political protest by means of self-starvation. Throughout modern history, hunger strike has been a powerful non-violent political action that has successfully shaken up the political structures of many countries around the world. The hunger strikes of Mahatma Gandhi in British-occupied India, Andrei Sakharov in the Soviet Union, Nelson Mandela in apartheid South Africa, and Bobby Sands of the Irish Republican Army, made these people the symbol of their nation’s conscience.

Today marks the first week of the hunger strike of political prisoners in detention centers nationwide. Hundreds of political prisoners in the country have staged a full blown hunger strike last July 25 that coincided with the second State of the Nation Address (SONA) of President Benigno Simeon Aquino III.

The political prisoners now numbering to more than two hundred have taken this political action not only to call on the President to pay attention to the plight of all political prisoners and act on their immediate release but also to protest over the death of political prisoner Mariano Umbrero who died without receiving pardon on humanitarian ground.

Tatay Umbrero, who was diagnosed with stage four lung cancer died at the National Bilibid Prison on July 15. What adds injury to insult is that four days later he was given an executive clemency by the president.

This prompted human rights groups, peoples’ organizations, religious groups and supporters to hold a solidarity fast inside the Commission on Human Rights (CHR) compound on July 28 to support the political prisoners’ demand for human rights and freedom.

The faux pas on the issuance of pardon for a dead man typifies the current administration’s lack of clear perspective on human rights. If the President could not immediately act on appeal for humanitarian ground, how could we expect him to act on more pressing issues like ending impunity and guaranteeing justice?

President Aquino as a son of a notable political prisoner and human rights victim under the Marcos dictatorship is expected to know better the plight of political prisoners and victims of human rights violations in the country. However, his first two SONAs ironically were completely devoid of clear human rights platform that could have addressed these issues and concerns.

With the nationwide hunger strike of political prisoners in full scale, his action or inaction will be a “make or break” for his administration. Acting on it will give more flesh to his government’s vision of “matuwid na daan”. But ignoring it will mean facing a big hurdle in treading this path. This is the political challenge of the hunger strike. The ball is now in the hands of the President. His integrity is now on the line. He should act NOW and act decisively and urgently to avoid tainting his hands with bloods of political prisoners who are hungry for freedom.

It is about time for the government to consider the political prisoners as such. They are not the ultimate problem but just a symptom of the endemic social disease. They only symbolize the unfulfilled aspirations and the unfinished revolution. The government which is installed for the greater demand of change can never realize peace and reconciliation it seeks without addressing the conditions that breed political imprisonment and the roots of social injustice.

If Pres. Aquino believed that his government’s major achievement so far is the transformation of the people’s attitude toward the government, the hunger strike of political prisoners is the major challenge on how government can transform not only the attitude but the lives of the people even those who aspire for change yet languish behind bars.

[Reflection] Pnoy’s 2nd SONA, So what’s new?

Posted on by dars0357

PNoy's 2nd SONA, what is there to say? Photo from pinoygigs.com

President Benigno S. Aquino III’s first State of the Nation Address (SONA) for many of his critics was nothing but a mouthful of litany without a substance.

Will his second SONA be different?

I bet to the last cents that PNoy’s second SONA will not be any dissimilar from his first.

If I sense it right, it is just about two things: those that he will say with conviction and those that he will not dare to say in order not to bite his own tongue.

There is nothing in his first SONA that showed any forward-looking solutions that his government is proposing to address the country’s endemic problems.

In fact, PNOy has become strangely passive in office for his first year, acting as if his only task is to discredit the Arroyos and to let the government do its work in a business as usual manner.

But he can’t keep dodging the bullet when there are many critical issues that posed great challenges to his administration.

On corruption

PNOY will surely throw out the baby with the bath water. To show that he is keen in moving his campaign slogan, “kung walang corrupt, walang mahirap”, he will not miss this chance to expose new anomalies and irregularities of the previous administration that his government has unearthed. He will brandish that his war on corruption is gaining ground.

It is no longer new and surprising to know the extent and magnitude of PGMA’s misdeeds but what is good in barking without biting. It will best serve the interest of the public if this will lead to prosecution and punishment of Arroyo and cohorts and not just mere public exposition.

On economy

Pnoy will certainly blow his own horn by announcing that his economic blueprint, known as “Social Contract with the Filipino people” is on the right track as the economy is fast growing. The Philippine Development Plan or the six-year economic blueprint sums up the administration’s economic direction with its defined strategies and goals for the next six years.

The economists believed that PDP is straightforward. It means – keeping the economy afloat in the globalized free trade while intensifying privatization through Public-Private Partnerships (PPPs), and implementing social support programs like conditional cash transfers (CCTs) and fuel subsidies.

If economy is indeed improving, do we feel better off? Pnoy’s second SONA may play with figures. But translating it to poverty alleviation will be the biggest question that Pnoy needs to answer.

On peace and security

Pnoy will definitely claim that his peace efforts are now in place in the resumption of the peace talks with Muslim and communist rebels.

But human rights groups have repeatedly recommended to the Philippine government to fully observe its legal obligations under international human rights and humanitarian law. The continuing attack against the perceived legal fronts of the communist rebels through harassment, intimidation and criminalization of political offense will only squander the opportunity to address the root causes of insurgency.

On human rights

PNoy’s first SONA never said anything about human rights and his government’s commitment for its promotion and better protection except perhaps a passing mention of his administration’s effort to solve the six extrajudicial killings that happened during the first few months after assuming office.

The lack of a clear human rights agenda is believed to be the reason why human rights violations continue unabated.

On land reform

Despite having been the centerpiece program of her mother, the late President Corazon Aquino the agrarian reform program was completely left out from his first SONA. Although, Pnoy mentioned his plan to build grains terminals, refrigeration facilities, road networks and post-harvest facilities for agriculture. But the highly controversial Hacienda Luisita is one issue that he will not dare dip his finger in.

The uneven ownership of land continues to magnifies the uneven social gaps in the society. The Comprehensive Agrarian Reform Programs despite claims of its success has not able significantly to redistribute wealth and liberate the vast majority of agricultural lands under the principle of “land to the tillers”.

On OFW, labor and employment

Despite assurance that wage hike is imminent, PNoy will not go far in his second SONA to commit his government in complying with its constitutional mandate to provide workers a family living wage.

The labor sector has been assailing ever since the big mismatch between the actual needs of workers and their level of income as the wage system is based more on the ‘capacity to pay’ of an employer rather than the ‘capacity to buy’ of a worker.

While a small wage increase will only benefit a reducing number of regular workers due to outsourcing, retrenchment and contractualization, at least three million Filipinos are expected to be completely out of work due to the exodus of returning OFWs. PNoy has no other way but focus on local job generation rather than extending the “labor export policy.”

So what’s new?

Whatever are the hypes and promises that Pnoy will say in his second SONA, what we are expecting more to hear is for PNoy to declare that his government will work not only to improve governance but also to make the economy a foundation for humane and decent living with a guarantee of respect and protection of our fundamental human rights.

That will be music to our ears.